explosives, drilling oil wells, fumigation, electricity, etc.). Apply the Learned Hand test (U.S. v. Carroll Towing). The better view is to shift the burden to the defendants (Summers v. Tice) or apply the market share approach (Sindell v. Abbott Laboratories). Can be an act which sets a force in motion, i.e., pushing a rock down a hill onto another's property. (Bussard v. Minimed; O'Shea v. Welch). But liability is not absolute. Possible Theories of Products Liability-BREACH OF IMPLIED WARRANTY-Elements, Possible Theories of Products Liability-BREACH OF IMPLIED WARRANTY-Defenses, Possible Theories of Products Liability-STRICT PRODUCTS LIABILITY OR STRICT LIABILITY IN TORT. For assumption of the risk to apply, plaintiff must know of the risk and voluntarily proceed in the face of it (Seigneur v. National Fitness; Rush v. Commercial Realty Co.). You are negligent if you unintentionally cause injury to someone in a situation where you should have known your action could cause harm. Negligence is caused by the failure to use reasonable care and comes in various degrees. Wrongful Death and Survival Actions-Survival statutes -. A. Defamatory Words Must Be Published to At Least One Person Other Than the Plaintiff Who Understands the Statement As Being Defamatory And the Defendant Must Have Intended to Publish or Was Negligent In Publishing (Economopoulos v. A.G. Pollard; Carafano v. Metrosplash.com, Inc.). R. Co.) or if the injury or occurs in a bizarre fashion. -. (Bruckman v. Pena; Michie v. Great Lakes Steel; Dillon v. Twin State Gas and Electric). STRICT LIABILITY: Abnormally Dangerous/Ultra hazardous Activities. This is an objective test of how a reasonable person of ordinary care would have acted. Do we have a duty to come to the aid of one in peril? 1. 1. If plaintiff sustains damage as the result of the negligent conduct of two or more tortfeasors, and it appears that the conduct of either one alone would have been sufficient to cause the injury, both are liable if each of their acts was a "substantial factor" in causing the injury. Negligence is defined as the failure to use proper care, which results in damage or injury to another. Choose from 500 different sets of chapter 6 intentional torts harm flashcards on Quizlet. (McCoy v. American Suzuki Motor Corp.). In that situation the reasonable adult standard applies (Robinson v. Lindsay). There is an absolute duty if the following apply: STRICT LIABILITY: Abnormally Dangerous/Ultra hazardous Activities Limitations/Defenses: STRICT LIABILITY: Approach when analyzing strict liability (non-products). Contributory Negligence 3. Intentional Infliction (causing) of Emotional Distress (mental harm). Although defendant is negligent, plaintiff is denied recovery because plaintiff's own conduct precludes him from maintaining the action. Apply the Learned Hand test (U.S. v. Carroll Towing). Elements: a. It co-stars reckless, wanton, and willful misconduct. Negligence, ... that the other party has about the seriousness of their actions and the likelihood that their actions are to cause harm … Ordinary negligence and professional negligence complaints against your business can trigger expensive lawsuits, costing you valuable time and money. If you know what happened to cause the harm res ipsa does not apply. Negligence vs. intentional acts of harm: Negligence: failure to do something that a reasonable person, guided by the ordinary professional considerations would do; the act of doing something unreasonable Intentional acts of harm: Criminal law, theft and violence against another person or the person's property 2. It is always foreseeable that other will act negligently; It is always foreseeable that rescuers will come to the scene and be injured or make the situation worse; It is always foreseeable that doctors will act negligently; Third party criminal act may or not be foreseeable depending on the circumstances. As a result of the defendant's violation of that duty, the plaintiff suffered injury; and 4. Defendant acts on a set stage and all factors contributing to plaintiff's injury or damage are in place as the defendant acts and the result which occurs is foreseeable with no new forces entering the picture. Malpractice is a type of negligence; it is often called "professional negligence". Public official or figure vs. media or private defendant, A. Plaintiff owes a duty to himself to act reasonably (Butterfield v. Forrester). Self-defense/Defense of others/Defense of property (Defense applies to battery, assault, false imprisonment, intentional infliction of emotional distress): Elements. If the plaintiff expressly or impliedly consents to relieve the defendant of an obligation of conduct toward him and to take his chances of harm from a particular risk, plaintiff is held to have assumed that risk and he is barred from recovering. -attractive nuisance doctrine. The intervening act usually will not excuse defendant #1 of liability but if the intervention is criminal or tortuous, defendant's liability may turn on the culpability of the intervener. Intentional torts are wrongful acts done on purpose. But there is no duty to inspect for or warn of dangers of which the landowner is not aware (Barmore v. Elmore). DEFAMATION-Elements-Constitutional Limits, 1. 1. Be careful - don't confuse direct negligence with vicarious liability. If intervening act is foreseeable, the liability of the first defendant is not cut off even if the intervening act is criminal (Derdiarian v. Felix Contracting Corp.). Broad view - the first defendant is liable; narrow view, first defendant escapes liability - restaurant serves bad food, patron vomits and plaintiff slips and falls due to vomit (Fuller v. Preis). DUTY TO USE REASONABLE CARE REQUIRES THAT YOU ACT AS A REASONABLE AND PRUDENT PERSON WOULD ACT UNDER THE SAME OR SIMILAR CIRCUMSTANCES. Duty to Those on the Premises - Be Careful with Change of Status-1. Our most popular study sets are an effective way to learn the things you need to know to ace your exams. Possible Theories of Products Liability-STRICT PRODUCTS LIABILITY OR STRICT LIABILITY IN TORT-Elements: cont. Complications of injury which could have been avoided if plaintiff had taken certain steps (Zimmerman v. Ausland). Invasion of Plaintiff's Interest In the Use or Enjoyment of. DUTY TO USE REASONABLE CARE REQUIRES THAT YOU ACT AS A REASONABLE AND PRUDENT PERSON WOULD ACT UNDER THE SAME OR SIMILAR CIRCUMSTANCES. Elements Common to Both Private and Public Nuisance cont. Licensee. Learn vocabulary, terms, and more with flashcards, games, and other study tools. Possible Theories of Products Liability-BREACH OF EXPRESS WARRANTY-Elements. Rather the landowner owes a duty of reasonable care to persons who enter the premises (Rowland v. Christian). But master may have separate liability (direct negligence) independent of that of the employee. Pure - plaintiff's recovery is reduced in proportion to the percentage of fault which can be attributed to the plaintiff. this is the cause of action which is brought by the heirs of the decedent. Majority - cannot use force and instead must use judicial proceedings. Negligence: failure to do something that a reasonable person, guided by the ordinary professional considerations would do; the act of doing something unreasonable. 1. Policy is based on the nature of defendant's activity which causes the harm. If a reasonable and prudent person would not have foreseen the possibility of injury or damage to anyone both Andrews and Cardozo agree that a duty is not owed to anyone. Negligence. B. The intervening force comes into play but is not in response to the negligence of defendant #1. Duty is owed to those who may foreseeably come into contact with the product. Accusations of either professional negligence or ordinary negligence can land your business in court. Issue Is Whether the Intervening Force (Act of God, Act of Man, Act of Animal) Extends the Result of the Negligence of Defendant #1 or Whether the Intervening Force Severs and Interrupts the Negligence of Defendant #1. Recovery of property/Recapture of chattel (Defense to battery, assault, false imprisonment, intentional infliction of emotional distress). -Dependent intervening -. Special Situations-Good Samaritans- (Breach of Duty). Negligent people do not intend to hurt someone with their actions, but they are still responsible for those actions because their careless or reckless behavior caused serious injury. Special Situations-Custom and usage - (Breach of Duty). Applies to all intentional torts except conversion and intentional infliction of emotional distress. A. This means that knowledge of the defect is presumed at the time the product is offered for sale (Friedman v. General Motors Corp.). Rescuers and Duty. MULTIPLE DEFENDANTS SHOULD SHARE FINANCIAL RESPONSIBILITY FOR THE HARM WHICH HAS BEEN INFLICTED ON PLAINTIFF. There are also three exceptions when informed consent is not required: emergency and the patient is unconscious; therapeutic meaning the patient is too distraught to require the doctor to explain the situation; doctor does not have to disclose that this is his first surgery. Most injuries that result from tortious behavior are the product of negligence, not intentional wrongdoing. 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